Cap on BP's spewing well

NEW ORLEANS – U. S. Magistrate Judge Sally Shushan blamed Houston engineer Fred Sabins for the disqualification of his firm as BP's cement expert in litigation over the Deepwater Horizon explosion, according to an order she unsealed on Dec. 21.

Shushan wrote that Sabins's decision to hire former Halliburton Energy Services engineer Michael Viator was the sole cause for disqualification of his firm, CSI Technologies.

Viator had helped Halliburton develop software and strategy for its defense against BP's claims that the failure of its cement caused the April 2010 explosion.

BP must designate a new expert to submit a report and testify at a deposition prior to a fault allocation trial that District Judge Carl Barbier plans to start next month.

"As to BP, it is a harsh result, but one which is warranted by Mr. Sabins's actions and which is necessary to preserve the integrity of the judicial process," Shushan wrote.

She wrote that Sabins did not erect a sufficient screen to prevent Viator "from having any contact whatsoever concerning CSI's work on the BP consultation."

"Sabins, while acting as a retained expert in extremely high profile litigation, hired a former Halliburton chemical engineer whom he knew had worked on Halliburton's investigation into the cementing on the Macondo well," she wrote. "Sabins acted to his, CSI's, and ultimately BP's detriment."

She signed and sealed the order on Dec. 8.

U. S. District Judge Carl Barbier affirmed it on Dec. 16, and kept it under seal.

Shushan unsealed it after the Southeast Texas Record newspaper and the Louisiana Record website asked for the source of her authority to seal it.

She wrote, "After consulting with the parties, agreement has been reached that the quoted portions of the deposition of Michael Viator, contained in the court's order of December 8, 2011, are not confidential."

"Accordingly, it is ordered that the order be unsealed, leaving only the two page attachment to the order under seal."

She entered another order on Dec. 27, setting a Jan. 3 deadline for BP to identify a substitute expert.

She set a Jan. 9 deadline for BP to show that its substitute had no contact with Viator's work at Halliburton or CSI's work for BP.

Viator started working for Halliburton in 2006.

Shushan wrote that he prepared a report on the explosion, reviewed a report of another employee, and worked with a team on a gas flow simulation project. The team gave Halliburton's attorneys' snapshots and spreadsheets.

According to the ruling, Viator left Halliburton last March and applied for a job at CSI. He told Sabins he was involved in simulations and "post-well analysis."

"Viator testified that Sabins told him he should not discuss anything to do with the Macondo well while he was at CSI," Shushan wrote. "Viator was then assigned to work on the BP file at CSI."

"When Sabins asked him to do the review, he did not ask Viator whether he would have to use anything that he learned while he was employed at Halliburton."

BP blew its own cover last fall by placing Viator's name on a list of engineers needing access to Halliburton property.

Halliburton moved to disqualify CSI and Sabins in November, asserting that they received confidential information from Viator.
Shushan wrote that Viator denied the assertion and did not submit an affidavit.

"Sabins created the dilemma in which the court finds itself," she wrote.

"General policy objectives aim to ensure that parties have access to expert witnesses who possess specialized knowledge and to allow experts to pursue their professional calling."

But federal courts have inherent power to disqualify expert witnesses where or when it is necessary to protect the integrity of the adversary process, or to promote public confidence in the legal system," Shushan wrote.

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